Even though the U.S. has lifted its Sudan sanctions with respect to the newly-minted state of South Sudan, that has not resolved the conundrum of U.S. oil investment and activity in South Sudan. South Sudan is land-locked, and all oil from South Sudan can be commercialized only by using a pipeline that runs through Sudan on its way to Port Sudan on the Red Sea.

In a guidance on the Sudan sanctions released back in April, the Office of Foreign Assets Control (“OFAC”) noted that the continuing sanctions on Sudan would prohibit U.S. oil companies

from providing services to the petroleum industry in the new state if those services would benefit the Government of Sudan or relate to the petroleum industry in Sudan, or from transporting exports of petroleum or petrochemical products through Sudan.

Revenue-sharing arrangements between Sudan and South Sudan arising from South Sudan’s use of Sudan’s pipeline would further complicate matters. Because of the inevitability of oil transport through Sudan and revenue-sharing arrangements between the two countries, this has been seen as, for all intents and purposes, a complete bar to U.S. oil companies doing business in South Sudan.

Apparently OFAC is now trying to find a way to work around that. Needless to say, because the sanctions on Sudan were imposed by Congressional legislation, OFAC doesn’t have a completely free hand here without enabling legislation from Congress. Still, OFAC is trying to determine what can be done in the absence of such legislation.

Princeton Lyman, the U.S. special representative to South Sudan, told a trade briefing in Washington, according to this item in Petroleum Economist, that a task force at OFAC was working on options to permit U.S. oil activity in South Sudan.

[Lyman] said the Treasury Department would define new criteria for licensing oil deals that would provide only incidental benefits to Sudan, making some deals with South Sudan possible. “The rules of the game are still being worked out and that is very frustrating to [South Sudan] because it wants US oil companies there,” he said. “There is a task force working on it and they will have something soon.”

I have to say I’m at a loss to see how anything could be structured that only provides “incidental” benefits to Sudan short of bypassing the Sudanese pipeline and any revenue sharing arrangement, both of which appear to be impossible, at least in the near term. But there is huge pressure on OFAC to structure something because the Chinese, which are major players in the oil industry in Sudan and South Sudan, are the only ones who will conceivably benefit if OFAC does not find a solution.

In the latest disclosure of civil penalty information by the Office of Foreign Assets Control, the agency describes a Letter of Violation that it issued against an international evangelical group called Christ for All Nations. According to the disclosure, the ministry “exported goods and services to Sudan in support of a non-commercial event in Sudan during 2006.” Another source describes the “non-commercial event” in Sudan as a religious revival rally in Juba:

In the months of July and August 2006 the Christ for all Nations (CfaN) team traveled to Sudan … In Juba, Sudan the team conducted a crusade and fire conference. The response was amazing with over 243,532 people completing a decision card for salvation. The effort required to get to Juba by the technical team was nothing short of heroic. A 1500 kilometer journey over rough roads, and bridges barely able to hold the weight of the huge trucks.

This is probably the first time OFAC has gone after anyone for conducting a church service in a sanctioned country.

Of course, you have to scratch your head to figure out how an overland trip by a German evangelist to a remote area of Sudan to preach violates any of the necessary elements of a violation set forth in the Sudanese Sanctions Regulations. Under Section 538.507, the re-export by non-U.S. persons subject to license requirement under the EAR with less than 10 percent U.S. content and EAR99 items is not prohibited by the regulations. All the goods here came to Sudan by road from other parts of Africa which makes one wonder which of these goods, if any, met these requirements.

And regardless of one’s belief about the efficacy of the services provided at a religious rally, these hardly seem to be “services” in any traditional sense. And even if they are, what regulatory policy is furthered by defining them as such? Does a religious rally in Juba benefit the Sudan-regime in any way that is contrary to the foreign policy interests of the United States?

No fine was imposed by OFAC based on “the licensable, non-commercial nature of the conduct and the non-profit nature of the violator on the other hand.” But is anyone else troubled by the notion that OFAC should be licensing religious services in foreign countries?

While I was traveling earlier this month, I missed the latest release of civil penalty information by the Treasury Department’s Office of Foreign Assets Control (“OFAC”). Both KLM and Geico were fined. We’ll look at the KLM case today and GEICO tomorrow because both penalty cases raise interesting issues.

KLM was fined $5,336.26 in connection with two cargo shipments it carried between KLM’s cargo facilities at O’Hare Airport in Chicago and the Khartoum International Airport. One shipment consisted of oil field equipment and the other contained hydraulic hoses. The offending shipments were not voluntarily disclosed to OFAC.M

OFAC’s initial nastygram to KLM (or “Prepenalty Notice” in OFAC-speak) proposed a $6,277.95 penalty. KLM’s reply admitted that its compliance program didn’t mention embargoed destinations but sought clemency from OFAC on the grounds that it had now circulated a notice to all U.S. operations reminding them about “bookings that cannot be accepted.” That delayed stab at compliance, however, did net KLM a savings of $941.69 or about 15% of the originally proposed penalty.

What is interesting here is that it now appears that KLM has circulated a bulletin to all of it’s cargo operations instructing them not to take any packages to Sudan or other embargoed destinations. That, of course, is an excessive, but understandable, response to the OFAC penalty proceeding. Yet, as we all know, not all cargo to Sudan is prohibited. A box of books would be fine under the information exemption. But KLM doesn’t want to have to inspect cargo and determine whether an export license is or isn’t required. And who can blame them?

Yes, yes, KLM broke the rules here, and it’s hard to muster up an abundance of sympathy for a carrier whose compliance program didn’t even mention that whole business of embargoed countries. Yet, yet, busting an airline for something like this (even if the fine is less than a first-class transatlantic ticket) will necessarily result in the airline doing exactly what it did here: overreact. This will make it difficult for shippers to send perfectly legal cargo to the country, violating the spirit, if not the letter, of the Berman Amendment, which established the exception for informational materials.

If OFAC needed a couple of whipping boys here, the shippers were better targets. They, of course, knew what they are shipping and should have known it wasn’t exempt.